Dr. Alexander Kornezov[1]


That the State is liable for breaching EU law is a long standing and widely recognised principle of EU law. In Bulgaria however this principle remains terra incognita – it is relatively unknown and only rarely – if ever – enforced. The reasons for this unfortunate state of affairs are numerous but one stands out. The national law which governs the responsibility of the State and the municipalities (ZODOV) seems so far to have been an insuperable obstacle to holding the State liable for breaches of EU law. This article examines the question of whether this law is incompatible with EU law.

The principle of State responsibility is set out in Article 7 of the Constitution. This article mentions only the “unlawful” acts of State bodies as possible sources of responsibility. Eventhough the Constitutional Court has not yet had the opportunity to clarify the exact meaning of this article, Bulgaria’s Supreme Courts seem to interpret it narrowly in the sense that only administrative acts or omissions can found the responsibility of the State. This reading stems from the understanding that legislative acts cannot be “unlawful”. In addition, this provision does not have direct effect. It is therefore necessary to look closely at the laws enacted by Parliament which give effect to this provision.

ZODOV is the principal law which governs the responsibility of the State. Its scope of application is however particularly narrow. First, it does not apply to acts of Parliament. In other words, under national law, the State cannot be held liable for such acts, even if they are incompatible with EU law. Second, only a few and very narrowly defined vitiated judicial decisions, mostly in criminal law, allow holding the State responsible for a breach resulting from a judicial act. Therefore, for a large spectrum of judicial acts, and virtually for all legislative acts, the State bears no responsibility. In these cases, interested parties cannot sue the State for damages.

Bulgarian tort law would only be of limited avail and cannot close the resulting caveat in judicial protection. This is due to the fact that tort liability generally requires some sort of intent or negligence, whereas State liability for breaching EU law is objective.

The article therefore argues that national law on State responsibility is incompatible with EU law. It suggests that immediate legislative action should be taken in order to remedy the inconsistencies before an infringement action pursuant to Article 258-260 TFUE be brought. In the meantime, national courts should interpret the applicable national law in conformity with EU law, or alternatively, directly apply the latter.


[1] Référendaire at the Court of Justice of the EU, guest lecturer at the University of Cambridge, University of Edinburgh, Katholieke Universiteit Leuven and Sofia University St Kliment Ohridsky.The views expressed are strictly personal.

Към цялата статия на български език: (НЕ) СЪОТВЕТСТВИЕТО НА ЗОДОВ С ПРАВОТО НА ЕС